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Walker v. Giuffre

August 31, 2010

MAY L. WALKER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
CARMELO GIUFFRE, INDIVIDUALLY, CARMELO GIUFFRE, D/B/A BAY RIDGE AUTOMOTIVE MANAGEMENT CORP., ROUTE 22 AUTO SALES, INC., ROUTE 22 AUTOMOBILES, INC., HUDSON AUTO SALES, INC., FREEHOLD AUTO SALES, INC., FREEHOLD AUTOMOTIVE LIMITED, INC., AND FREEHOLD JEEP/EAGLE, INC., DEFENDANTS, AND ROUTE 22 NISSAN, INC., DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3187-03.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 20, 2010

Before Judges Skillman, Fuentes and Gilroy.

In December 2001, plaintiff Mary L. Walker purchased a new 2002 Nissan from defendant Route 22 Nissan, Inc.*fn1 She filed a class action suit against defendant and other car dealerships claiming that they had committed regulatory violations contrary to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.

At the time plaintiff filed this suit, defendant was also named in a similar class action suit filed in Bergen County. Although plaintiff was included within that class, she decided to opt out of it and to proceed individually against defendant. Thus, although the trial court initially certified this class, it later decertified it after the Bergen County matter settled.

Ultimately, the court granted plaintiff's motion for summary judgment in the action before us, finding that defendant had violated the CFA and the TCCWNA; the court awarded plaintiff $654.50 in damages, $99,252.50 in attorney's fees, and $5431.14 in costs.

Defendant now appeals challenging the trial court's ruling in all respects. Plaintiff cross-appeals from the court's decision to decertify the class. We affirm the trial court's ruling as to liability and its decision to decertify the class. We reverse and vacate the award of counsel fees, however, and remand for the court to reconsider the amount of counsel fees plaintiff is entitled to under prevailing legal standards.

The following facts will inform our discussion of the legal issues raised by the parties.

I.

Plaintiff purchased a 2002 Nissan from defendant in December 2001. The sales contract contained the following language in size eight font: "YOU HAVE THE RIGHT TO A WRITTEN ITEMIZED PRICE FOR EACH SPECIFIC DOCUMENTARY AND PRE-DELIVERY SERVICE WHICH IS TO BE PERFORMED." The size of the font violated the provisions of N.J.A.C. 13:45A-26B.2(a)2, which requires statements concerning pre-delivery services to be written in size ten font on the sales contract.

The sales contract included an itemized charge of $199.00 for a "documentary fee"; this figure was further subdivided to reflect charges for messenger, clerical, and computer fees. Additionally, the contract included a $140.00 charge for motor vehicle registration and the transfer of license plates (the registration fee). Plaintiff also signed a power of attorney appointing defendant as her attorney-in-fact for transferring title and registration.

Because she was financing part of the purchase price, plaintiff signed a separate retail installment contract that identified certain charges as "amounts paid to others on your behalf." Written in smaller type, the contract read: "To the extent permitted by applicable law, [we] may retain a portion of these amounts." The $140.00 registration fee was included within that category of charges. Defendant conceded before the trial court that the amount charged by the New Jersey Motor Vehicle Commission for transferring the license plates and registration was only $88.50, leaving a surplus of $51.50.

On April 25, 2003, plaintiff filed this class action suit against defendant, also naming six other car dealerships under common ownership with defendant, the individual who owned the dealerships, and a New York corporation, alleging that the registration fee violated the CFA and the TCCWNA.

After joinder of issue and preliminary motion practice, plaintiff moved for class certification. While this motion was pending, a Bergen County class action suit alleging similar deceptive practices was in settlement negotiations. That case, Cerbo v. Ford of Englewood, Inc., No. L-2871-03 (Law Div. Jan. 25, 2006), identified defendant as a responsible party. The Cerbo case, however, named approximately 550 defendants, consisting of virtually all of the automotive dealers in New Jersey, and the class encompassed more than two million purchasers. Although plaintiff had opted ...


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